Wage Theft Cases

Donna Vitali vs. Reit Management & Research, LLC. No. 14-P-1304. Suffolk. May 8, 2015. August 21, 2015. Present: Green, Milkey, & Maldonado, JJ. Labor, Overtime compensation, Wages. Practice, Civil, Summary judgment. In a civil action arising from the plaintiff employee’s claim that she accrued overtime that was not credited by the defendant employer’s timekeeping system, the allowance of summary judgment in favor of the employer was erroneous, where the summary judgment record permitted findings that the employer was armed with at least constructive knowledge that employees were undertaking lunch time work that should have been credited toward overtime and assumed in its own favor that employees were not performing any such work except where they separately reported it through a process the plaintiff was never trained in or even told to use. [103-112] Civil action commenced in the Superior Court Department on February 13, 2012. The case was heard by Mitchell H. Kaplan, L, on a motion for summary judgment. Stephen S. Churchill for the plaintiff. Jennifer B. Furey (Paul F. Beckwith with her) for the defendant. Milkey, J. The plaintiff, Donna Vitali, worked as a bookkeeper for the defendant, Reit Management & Research, LLC (company), a property management firm. She was paid by the hour, and pursuant to both statute and company policy, she was to be paid overtime at one and one-half times the regular rate for any work done in excess of forty hours in a given week. See G. L. c. 151, § 1A. She brought the current action alleging that she accrued overtime that was not credited by the system the company had in place to keep track of employee hours. In a detailed and thoughtful decision, a Superior Court judge allowed the company’s motion for summary judgment. Because we conclude that there are material facts in dispute, we reverse. Standard of review. Our review of the allowance of a motion for summary judgment is de novo. Deutsche Bank Natl. Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253 (2015). Disputed facts are to be read in the light most favorable to the nonmoving party, in this case, Vitali. Id. at 250. “The moving party must affirmatively show that there is no real issue of fact, all doubts being resolved against the party moving for summary judgment.” Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273, 281 (1986) (quotation omitted). Evidence in the record is considered together with all reasonable inferences to be drawn from the record. Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119 (2010). Background. 1. The nature of the dispute. Vitali was scheduled to work from nine to five, five days per week, with a paid one-hour lunch break. Both sides agree that lunch breaks do not count toward overtime. They also agree that if an employee has to work during what otherwise would be a lunch break, the employee gets no extra pay for doing so (since she or he is already being paid for that time). However, such worked lunch time can be counted toward the forty-hour overtime threshold, thus potentially indirectly increasing the employee’s over-all compensation. Vitali claims that she regularly worked during her lunch breaks even though that time was not recorded in the particular timekeeping system that the company used during the relevant period. She brought this action pursuant to G. L. c. 151, § 1A, purportedly as a class action, seeking the extra compensation that would be due if she and others similarly situated were credited for such lunch time work. 2. The company’s timekeeping system. On February 15, 2010, the company implemented a new electronic timekeeping system. Under this system, which was known as Kronos, hourly employees were required to use their computer terminals to “punch in” when they first arrived on a given day, and to “punch out” when they left. At the center of this case is how the company, relying on Kronos, accounted for employee lunch breaks. As the company acknowledged, when Kronos was first implemented, it did not have the “functionality” to allow employees to punch out for lunch and to punch back in when they returned. The absence of that feature created a potential discrepancy between the hours that an employee “clocked” using Kronos and the time they actually worked. Thus, for example, if Vitali confined her work to the scheduled nine-to-five work day and took her allotted one-hour paid lunch breaks, she would clock forty hours even though she actually worked only thirty-five hours. As a result, if Vitali performed work outside of the ordinary nine-to-five work day, the time automatically would be captured as clocked hours, but any time she spent working during lunch would not similarly be reflected. Thus, regardless of whether Vitali worked through all (or part) of lunch or took her full allotted lunch break, her hours clocked in Kronos would be the same. 3. The company’s practice in calculating overtime. In light of the discrepancy between hours worked and hours clocked, the company adopted a practice of paying overtime to hourly employees only once they clocked forty-five hours for a given week unless the employees separately reported having to work in lieu of lunch. In other words, except to the extent that hourly employees separately recorded their lunch time work, the company assumed that they took their full one-hour lunch breaks. According to Melissa Juppe, the company’s payroll supervisor, the proper protocol for recording lunch time work in Kronos was for employees to access a “drop down” menu on their computer screen through which they could then input the time code “worked hours” for the relevant amount of time. In Juppe’s own words, employees “would have to log in and then once they’re on their timecard, they go to the day they didn’t take their lunch, they insert a row and the pay code column they’d do the drop down and there’s a code that says working hours, and they would record the time that they worked during their lunch.” The extent to which employees were informed of this procedure and instructed that they should use it is reserved for later discussion. 4. Vitali’s alleged lunch time work. The exigencies of the company’s property management responsibilities sometimes required employees to work beyond their scheduled hours. For those in Vitali’s position, the events that required extended work included mass lease terminations, “[mjonthly closes, quarter closes, conference calls for bad debt, [and] audits.” As noted, when hourly employees were required to work outside of the scheduled nine-to-five work day, Kronos automatically recorded such hours. In those weeks in which Kronos recorded Vitali as having clocked more than forty-five hours, she was paid overtime. For example, during the week of February 28, 2011, Kronos recorded that Vitali clocked 49.75 hours, and she was paid for four and three-quarters hours of overtime. According to Vitali, her work responsibilities also required her to work during her lunch breaks on average three to four times per week. The employees in her unit did not have specifically scheduled lunch breaks; instead, people took them “when they could.” Vitali “always” brought her lunch and “typically” ate it at her desk in her cubicle. While she was taking such breaks, people would bring her assignments that required prompt attention. Vitali provided numerous examples of specific individuals who would bring such assignments and the kinds of tasks that required her to do work during lunch. For example, she identified Carrie Noyes as someone who “would come to [her] with bank reconciliation items that she needed resolved right away for [the company’s comptroller and another high ranking manager].” Vitali also stated that she regularly observed others working during their lunch breaks, and she specifically identified such individuals. It is uncontested that Vitali never successfully used the Kronos drop down menu protocol to record the lunch time work she claims to have performed, and that she did not receive credit for any such work toward the accrual of overtime. Had she been credited for the work, she would have received some additional overtime compensation (in those weeks in which her total worked hours exceeded forty). 5. The judge’s ruling. The judge concluded that with respect to Vitali’s uncorroborated claims to having worked regularly during lunch, “her deposition testimony to this effect is sufficient to create a jury question on [this issue].” However, he went on to rule in the company’s favor on other grounds. Specifically, he concluded that Vitali had failed to produce evidence upon which reasonable jurors could conclude that the company knew or should have known that Vitali had engaged in uncredited overtime. In this regard, the judge deemed it critical that Vitali had failed to report her lunch time work in accordance with available procedures, even in the face of the company’s general policy against paying overtime except where employees had obtained prior approval. The judge also found it significant that — in contrast to some of the cases that Vitali had cited — there was no evidence here that the company had pressured Vitali not to report the hours for which she was seeking credit. Discussion. The payment of overtime is governed by G. L. c. 151, § 1A. That statute “was ‘intended to be essentially identical’ to the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 207(a)(1) (2000).” Mullally v. Waste Mgmt. of Mass., Inc., 452 Mass. 526, 531 (2008), quoting from Swift v. AutoZone, Inc., 441 Mass. 443, 447 (2004). Accordingly, in interpreting the State law, we look to how the FLSA has been construed. See ibid. The case law has interpreted the FLSA in a manner that is highly protective of employee rights. As the United States Court of Appeals for the Second Circuit recently observed, “[i]n service of the [FLSA’s] remedial and humanitarian goals, the [United States] Supreme Court consistently has interpreted the [FLSA] liberally and afforded its protections exceptionally broad coverage.” Chao v. Gotham Registry, Inc., 514 F.3d 280, 285 (2d Cir. 2008). Pursuant to the FLSA, an employee must prove both that he incurred unpaid overtime work, and that the employer “had actual or constructive knowledge that he was working overtime.” Prime Communications, Inc. v. Sylvester, 34 Mass. App. 708, 709 (1993). The knowledge inquiry requires an assessment of what the employer knew or should have known, and is to be made in view of the employer’s “duty ... to inquire into the conditions prevailing in his business.” Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508, 512 (5th Cir. 1969) (quotation omitted). In other words: “In reviewing the extent of an employer’s awareness, a court ‘need only inquire whether the circumstances . . . were such that the employer either had knowledge [of overtime hours being worked] or else had the opportunity through reasonable diligence to acquire knowledge.’ ” Reich v. Department of Conservation & Natural Resources, 28 F.3d 1076, 1082 (11th Cir. 1994), quoting from Gulf King Shrimp Co. v. Wirtz, supra. To the extent that an employee has reported his hours in accordance with the employer’s mandated timekeeping procedures, the employer’s knowledge of those hours is not in doubt. Thus, the cases concerning an employer’s knowledge all involve employee claims for unreported hours. In such cases, any failure by the employee to use prescribed timekeeping procedures is obviously a point in the employer’s favor. However, that failure is not fatal to the employee’s claim if he or she is able to marshal other proof that the employer had actual or constructive knowledge of the unpaid overtime. See, e.g., Holzapfel v. Newburgh, 145 F.3d 516, 524 (2d Cir. 1998) (“[0]nce an employer knows or has reason to know that an employee is working overtime, it cannot deny compensation even where the employee fails to claim overtime hours”). Thus, even where the employer has expressly prohibited overtime work, if it had reason to believe that such work was being done, “the employer cannot sit back and accept the benefits without compensating for them.” Reich, supra at 1082, quoting from 29 C.F.R. § 785.13. Conversely, if the employee is unable to marshal proof that the employer knew or should have known of the overtime work, the employee cannot prevail. See Prime Communications, Inc., supra at 711, quoting from Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981) (no FLSA liability “where an employer has no knowledge that an employee is engaging in overtime work and that employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work”). We are mindful that, in reviewing the summary judgment record, we must consider not only any direct evidence of the employer’s knowledge (actual or constructive), but also “all reasonable inferences” to be drawn from the evidence. Godfrey v. Globe Newspaper Co., 457 Mass. at 119. Indeed, an employer’s knowledge, like other “state of mind” inquiries, “is elusive and rarely is established by other than circumstantial evidence.” Blare v. Husky Injection Molding Sys. Boston, 419 Mass. 437, 439 (1995). Questions such as knowledge and intent often “require[ ] the jury to weigh the credibility of conflicting explanations.” Id. at 440. Thus, the determination of what a person knows or should have known under a specific factual situation is typically ill-suited for resolution by summary judgment. Riley v. Presnell, 409 Mass. 239, 247-248 (1991). Turning to the application of these principles here, we first examine whether the record creates a factual dispute regarding whether the company knew or should have known that Vitali did not take her full lunch breaks. We then turn to whether there was sufficient evidence in the summary judgment record that the company knew or should have known that Vitali was not receiving credit for such time. There was ample evidence upon which jurors could conclude that the company generally was aware that many of its employees sometimes worked during their allotted lunch breaks. For example, as discussed further below, when Kronos was first rolled out, the company’s payroll department received multiple employee inquiries about how to record lunch time work. One of the company’s own affiants even stated that during the relevant period, she “typically worked through lunch” as a matter of mere personal preference. Indeed, the practice of employees working through lunch apparently became so pervasive that the company on several occasions had to remind employees that they were supposed to take at least a one-half hour lunch break. Other than those periodic reminders, there is no evidence that the company sought to limit its employees from working during their lunch breaks. This is hardly surprising given that work done during a lunch break costs the company no extra direct compensation (since the employees were already being paid for that time). , In addition, there was evidence from which reasonable jurors could conclude that the company knew, or had reason to know, that Vitali in particular did not take her full one-hour lunch breaks. Unlike the typical overtime case where the extra work the employee claims to have performed was done off site, the alleged work here was done at her cubicle desk in an office setting. It is uncontested that Vitali typically took lunch breaks at her desk, and the company concedes “that, at times, Ms. Vitali received various work-related assignments throughout her day” from her supervisor. The company has not actually challenged Vitali’s specific averments as to the pressing nature of the assignments that she claims prevented her from taking her full lunches. Especially given that the state of an employer’s knowledge is to be assessed in light of its duty to inquire into the attendant working conditions, there was ample evidence on which jurors reasonably could have concluded that the company at least had reason to know that Vitali sometimes performed work during her lunch breaks. There was also evidence, discussed infra, that the company had actual knowledge of at least one occasion on which Vitali worked through her lunch break. Seeking to avoid the implication that it had reason to know that Vitali was performing work during her lunch breaks, the company highlights that it had a sternly worded policy in place requiring all employees to obtain specific prior approval before working overtime. See Newton v. Henderson, 47 F.3d 746, 749-750 (5th Cir. 1995) (employee cannot thwart clearly enforced policy against working overtime). This argument is unavailing for two reasons. First, the company has not shown that its policy requiring prior approval for overtime work had any application to employees performing work during their lunch breaks. Although lunch time work (like any other work done during the scheduled nine-to-five work day) counts toward the forty-hour threshold that needs to be crossed for overtime to be due, it does not itself constitute overtime. Thus, an hourly employee who worked through every lunch break would still not be entitled to any overtime unless she performed additional work outside of the normal nine-to-five work day. Notably, in reminding employees of the need to seek prior approval for overtime work, the written instructions that the company provided for using Kronos specifically equated “working overtime” with “coming in early or staying late.” The company was free to adopt a policy requiring employees to obtain prior approval before performing work on their lunch breaks; it simply did not do so. Second, there was evidence in the summary judgment record that the company’s policy of requiring specific prior approval for overtime was honored in the breach. For example, one of the company’s own affiants stated that her supervisor had given her “general blanket approval for overtime” when her department was “unusually busy.” Where an employer in practice fails to enforce a formal employment policy limiting overtime work, a jury could infer that the employer knew or should have known that employees were engaged in unauthorized overtime notwithstanding the existence of such a policy. See Reich, 28 F.3d at 1083 (recognizing that employer must do more than “simply continue to apprise [the employees]” of policy against working overtime). In addition, the company argues that even if it had reason to know that Vitali at times was not taking her full allotted lunch breaks, it still had no reason to know that she was not reporting this lunch time work. In making this argument, the company asserts that employees were well informed of the way in which hours worked during lunch were to be recorded in Kronos. The company maintains that it was fair and appropriate to assume that Vitali would have reported any lunch time work through the means that the company made available, especially where employees were required to attest to the accuracy of their recorded time. In short, the company contends that because Vitali failed to comply with reasonable reporting procedures, her case fails as a matter of law. See White v. Baptist Memorial Health Care Corp., 699 F.3d 869, 876 (6th Cir. 2012) (“Under the FLSA, if an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for nonpayment if the employee fails to follow the established process”). There are several problems with this argument. To begin with, “[t]he FLSA makes clear that employers, not employees, bear the ultimate responsibility for ensuring that employee time sheets are an accurate record of all hours worked by employees.” Skelton v. American Intercontinental Univ. Online, 382 F. Supp. 2d 1068, 1071 (N.D. Ill. 2005). Moreover, “an employer’s duty under the FLSA to maintain accurate records of its employees’ hours is non-delegable.” Kuebel

Mary Ellen Wessell vs. Mink Brook Associates, Inc., & another. No. 14-P-1120. Worcester. April 7, 2015. August 5, 2015. Present: Kafker, C.J., Kantrowitz, & Hanlon, JJ. Massachusetts Wage Act. Attorney at Law, Disqualification, Attorney-client relationship, Conflict of interest. Employment, Retaliation, Termination. Damages, Wrongful discharge of employee, Back pay. Practice, Civil, Instructions to jury, Damages. In a civil action in which the plaintiff asserted claims for lost wages and retaliatory discharge against the defendants (her former employers), a Superior Court judge properly denied the defendants’ motion to disqualify the plaintiffs attorney, where, although the attorney previously had advised the plaintiff on certain topics in the plaintiffs capacity as an employee of the defendants, those matters were not substantially related to the plaintiff’s complaint, given that there was no overlap or similarity; where the attorney never gained confidential information in those prior matters; and where the motion was a dilatory tactic, in that it was filed on the eve of trial, one and one-half years after the complaint was filed. [751-753] At the trial of a civil complaint in which the plaintiff asserted claims for lost wages and retaliatory discharge against the defendants (the plaintiff’s former employers), the judge correctly instructed the jury that if they found that the defendants had fired the plaintiff in retaliation for asserting a wage right, under G. L. c. 149, § 148A, the jury could award her damages based on her earnings from the date of her termination until the date of the jury’s decision [753-755], Civil action commenced in the Superior Court Department on June 19, 2012. A motion to disqualify the plaintiff’s attorney was heard by David Ricciardone, J., and the case was tried before him. Gregg S. Haladyna for the defendants. Steven D. Weatherhead (John F. Welsh with him) for the plaintiff. Robert C. Stone. Kantrowitz, J. This case involves a dispute between an employee and her former employer regarding unpaid wages. The plaintiff, Mary Ellen Wessell, successfully sued Mink Brook Associates, Inc. (Mink Brook), and owner Robert C. Stone under the Wage Act for lost wages and retaliatory discharge after Stone refused to issue her a paycheck, she complained, and she was fired. In this appeal, the defendants argue that the trial judge improperly denied their pretrial motion to disqualify opposing counsel because Wessell’s attorney, who was her long-time personal friend, had previously provided informal legal advice to her on certain topics in Wessell’s capacity as an employee of Mink Brook. The defendants also contend that the judge improperly instructed the jury on compensatory damages on the retaliation claim. We affirm. Background,. Mink Brook was incorporated in 1993 as a franchisee of Paul Davis Restoration, a national company that performed restoration work on houses to mitigate damage from flooding, fire, mold, or other problems. Stone was Mink Brook’s owner and president. In 2007, Stone contacted Wessell to discuss hiring her to work on the company’s financial matters and record-keeping. She joined Mink Brook in its Worcester office as a subcontractor at an hourly rate, and in 2008 she became the company’s “business manager” at an annual salary of $50,000. Wessell’s duties included managing accounts, human resources, payroll, bookkeeping, insurance policies, vehicle registration, and licenses. She would occasionally work from home on a laptop computer that Stone purchased. Wessell also performed unpaid work duties during her vacations or at times outside of her business hours. Employees received paychecks every two weeks. Wessell testified that she worked about fifty hours per week. During Wessell’s employment at Mink Brook, she occasionally sought informal legal advice from a close friend, Attorney John Welsh, whom she had known for many years. In 2008 and 2009, Wessell consulted with Attorney Welsh on a former employee’s breach of postemployment covenants, and Welsh drafted a cease- and-desist letter. In 2010, on matters involving another former employee, Wessell exchanged electronic mail messages (e-mails) with Welsh, and he reviewed correspondence that Mink Brook sent to the Attorney General’s office. Sometime in 2010, Welsh notified Wessell that he would no longer provide legal advice to Mink Brook. However, on June 15, 2011, Wessell again contacted Welsh, who agreed as a “friend” to provide advice on an issue involving building access by a Mink Brook job applicant who had a physical disability. Wessell testified that as of late 2011, she observed numerous problems or irregularities with the company’s finances and operations. She informed Stone of some of her observations, including her belief that an employee was “stealing from him.” Stone said “[bjasically nothing” in response to this information. Shortly thereafter, in early January, 2012, Stone called Wessell into a meeting in which the accused employee was present. At this meeting, Stone accused Wessell of lying about her reporting of work hours since her automobile accident (see note 3, supra). He demanded financial reports that were impossible for her to provide, and he ultimately demoted her from business manager, placed the accused employee in that role, and required Wessell to report to that employee. On March 28, 2012, during a meeting with several employees including Wessell, Stone addressed their financial concerns about Mink Brook and informed them that the company was not closing but was experiencing “just a little bump in the road.” Stone then named several employees who would still receive their upcoming paychecks, but he did not name Wessell. When she inquired about her paycheck, he stated that she would not receive it. Wessell responded that this was unfair and that she wanted to meet privately with Stone after the group meeting. One hour later, Wessell and Stone met privately in her office. Wessell demanded to be paid, and Stone replied that she “could afford not to get paid.” The next day, March 29, 2012, Wessell again met with Stone and the accused employee. Stone stated that Wessell was stealing money and reimbursing herself without authorization, which Wessell denied. Stone then fired her. Wessell formally retained Welsh who, on June 19, 2012, filed the instant complaint against Mink Brook and Stone, alleging claims of nonpayment of wages and retaliatory firing in violation of the Wage Act, G. L. c. 149, §§ 148, 148A. On January 2, 2014, nearly one and one-half years after the litigation began and eleven days before trial, the defendants filed a motion to disqualify Welsh, claiming a conflict of interest given Welsh’s attorney-client relationship with them. One week later the trial judge, after a hearing, denied the motion. The judge ruled that Welsh’s advice to Wessell, given when she worked for Mink Brook, was informal, free, and unrelated to the issues in her complaint. The judge concluded that although Welsh’s personal relationship with Wessell gave Mink Brook a “valuable contact,” Mink Brook and Welsh never established an attorney-client relationship. On January 14, 2014, the jury found for the plaintiff and awarded damages for lost wages and unused vacation time, up to the date of her firing, of $3,750. The jury also awarded lost compensation from the date of firing up to the date of the verdict, minus earnings from Wessell’s subsequent employment elsewhere, of $54,880.90. On January 24, 2014, the court entered an amended judgment that trebled the amount, as required under G. L. c. 149, § 150, and added interest, for an award of $187,111.38. This appeal followed. Motion to disqualify. Denial of a motion to disqualify an attorney is reviewed for abuse of discretion. Steinert v. Steinert, 73 Mass. App. Ct. 287, 288 (2008). A moving party must show, first, that the current representation is adverse to the interests of the former client, and second that the matters of the two representations are substantially related. Slade v. Ormsby, 69 Mass. App. Ct. 542, 546 (2007), citing Adoption of Erica, 426 Mass. 55, 61 (1997). See Mass.R.Prof.C. 1.9, 426 Mass. 1342 (1998). An attorney-client relationship “may be, but need not be, express; the relationship can be implied from the conduct of the parties.” Page v. Frazier, 388 Mass. 55, 62 (1983). For an implied attorney-client relationship, (1) a party must seek advice from an attorney, (2) the advice sought must be within the attorney’s professional competence, and (3) the attorney agrees to give, or actually gives, the advice. DeVaux v. American Home Assur. Co., 387 Mass. 814, 818 (1983). Additionally, “the question whether there was an attorney-client relationship depends on the reasonableness of the [complaining party’s] reliance.” Id. at 819. For matters to be “substantially related,” courts have consistently found that counsel must possess confidential information that could be used against the former client in the current representation. See Masiello v. Perini Corp., 394 Mass. 842, 847-850 (1985); Adoption of Erica, 426 Mass, at 63. When determining whether matters are substantially related, a judge should make a factual determination by comparing “the overlap and similarity” between the former and current representations. Slade v. Ormsby, 69 Mass. App. Ct. at 547. Courts discourage “eleventh hour maneuvers” to disqualify opposing counsel where the moving party has advance notice of the representation by opposing counsel but waits to raise the issue until the eve of trial. Masiello v. Perini Corp., 394 Mass, at 850. Such tactics “are disruptive to the efficient administration of justice and are costly.” Ibid. “Court resources are sorely taxed by the ... use of disqualification motions as harassment and dilatory tactics.” Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246, 250 n.7 (1985). Here, even if an attorney-client relationship existed between Welsh and the defendants, the judge properly denied the motion to disqualify because Welsh’s services, including his advice on handicap accessibility and review of certain letters, never involved matters “substantially related” to Wessell’s Wage Act dispute. See Slade v. Ormsby, 69 Mass. App. Ct. at 546. Although Welsh advised Wessell on specific Mink Brook employee matters, those matters were not substantially related to Wessell’s complaint because there was no overlap or similarity. See id. at 547. Also, Welsh never gained confidential information in the prior matters that disadvantaged Mink Brook at trial here. See Masiello v. Perini Corp., 394 Mass, at 847-850; Adoption of Erica, 426 Mass, at 63. Lastly, as the judge noted before trial, the defendants’ motion had all the indications of being an “eleventh hour maneuver[ ]” to disqualify opposing counsel despite numerous opportunities before trial to raise the objection. Masiello v. Perini Corp., 394 Mass, at 850. The defendants filed their motion on the eve of trial, about one and one-half years after Wessell’s complaint. Without a sufficient explanation for the extraordinary delay, the motion was properly denied not only as without merit but also as a dilatory tactic. Damages under Wage Act. The defendants argue that the judge erred when he instructed the jury that they could award the plaintiff compensatory damages (“back pay”) for a violation of the Wage Act, specifically for a retaliatory firing prohibited under G. L. c. 149, § 148A. They maintain that one who violates § 148A “shall be punished or shall be subject to a civil citation or order as provided in [G. L. c. 149, §] 27C,” only, and that § 148A does not enable a private individual to obtain compensatory damages because the criminal and civil penalties in § 27C are the exclusive remedy, enforceable by the Attorney General only, for § 148A violations. The Wage Act has interrelated mechanisms to ensure that employees are timely paid and protected when that right is asserted. Under G. L. c. 149, § 148, as amended by St. 1992, c. 133, § 502, an employer “shall pay weekly or bi-weekly each such employee the wages earned by him to within six days of the termination of the pay period during which the wages were earned if employed for five or six days in a calendar week . . . .” The first paragraph of G. L. c. 149, § 148A, inserted by St. 1977, c. 590, mandates that “[n]o employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter.” Completing the circle, G. L. c. 149, § 150, authorizes an employee faced with a violation of § 148 or § 148A to bring a civil action “for any damages incurred, and for any lost wages and other benefits.” See Fernandes v. Attleboro Hous. Authy., 470 Mass. 117, 126-127 (2014). The defendants’ view, that the remedy under § 148A is limited to criminal and civil penalties and not damages from the date of retaliation up to the date of judgment, is overly restrictive, essentially ignores G. L. c. 149, § 150, and leaves those aggrieved with no option other than a complaint to, and action by, the Attorney General. The Wage Act, when read as a whole to ensure payment and to protect employees who assert that right, does not support the defendants’ assertion that the § 27C language is exclusive and only allows actions by the Attorney General. In so arguing, the defendants ignore the authorization in § 150 for a private cause of action for retaliation prohibited by the first paragraph of § 148A. In sum, read in totality, for wage claims under § 148, an employee may recover earned wages that an employer has withheld. For retaliation claims under § 148A, an employee terminated by an employer for asserting a wage right may recover damages stemming from the termination. Damages for retaliation may include earnings from the date of termination up to trial. See Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 379 (1st Cir. 2004) (“An award of back pay compensates plaintiffs for lost wages and benefits between the time of the discharge and the trial court judgment”). Here, the defendants’ retaliatory firing of Wessell violated § 148A, which triggered Wessell’s § 150 remedy for recovery of “any damages incurred, and . . . any lost wages and other benefits.” The judge correctly instructed the jury that if they found that the defendants fired Wessell in retaliation, the jury could award her damages based on her earnings from the date of her termination until the date of the jury’s decision. See Fernandes v. Attleboro Hous. Authy., 470 Mass, at 130 & n.ll. Amended judgment affirmed. Our recitation includes both evidence put before the judge on the defendants’ pretrial motion to disqualify Wessell’s counsel and evidence put before the jury at trial. The latter we generally present in the light most favorable to Wessell. Much was undisputed, but where there was a relevant conflict, or a finding by the judge, we will so note. In April, 2011, Wessell was involved in a car accident, which required approximately eight weeks of recuperation and lost work. When Stone protested the lost time, Wessell worked part-time from home. She was paid at an hourly rate. Attomey Welsh stated in an affidavit that “I have known Ms. Wessell for over 35 years. She has been my sister’s best friend since grade school.” He further stated that “Ms. Wessell would call me intermittently (once every 12-18 months) for advice concerning personnel issues she was handling on behalf of the company.” Welsh stated in his affidavit that he stopped providing legal advice to Mink Brook because he found Stone’s treatment of Wessell to be unacceptable. Additionally, he had a billing and stolen property dispute with Mink Brook regarding work performed on his home. The defendants dispute receiving notice that Welsh’s legal advice stopped in 2010. The defendants also alleged that Welsh helped Wessell prepare an employee handbook for Mink Brook. Regarding Mink Brook’s finances, Wessell testified that sales were low and customers were complaining. On at least one occasion, Wessell had to delay issuing paychecks to herself and other employees. Wessell testified that Stone charged personal expenses to company credit cards and used company money to pay his son large amounts of money for cleaning the bathrooms, to provide his wife with a salary, to make payments on his home mortgage, and to purchase several items that were unrelated to the company’s home restoration business. Wessell testified that she later received a check for a portion of the money that Mink Brook owed her for wages. Wessell’s complaint stated that she received a right-to-sue letter from the Attorney General; this letter is not included in the record appendix, but the defendants raise no issue on this subject. Wessell’s complaint also included a quantum meruit claim that was eventually dismissed by stipulation of the parties. The matter of representation by Welsh was apparently considered by the defendants when they were defaulted in late 2012. Counsel for the defendants told the trial judge on January 9,2014, at the hearing on the motion to disqualify, that the default occurred because Stone considered the complaint “just an intimidation tactic,” and believed that Welsh could not bring the complaint because of his prior legal assistance to Mink Brook. The judge found: “There’s a very de minimis interaction between Ms. Wessell and Mr. Welsh in terms of some of this informal advice and education on legal topics such as handicap accessibility and what to do with a competing former employee and things of that nature. These contexts to me arise out of the personal relationship between the two. I think he was representing Mink Brook in only the most technical sense, and certainly by going ahead and representing Ms. Wessell in this case I don’t think that there is any basis for an abuse of confidential information regarding Mink Brook that he learned in the course of any of this advice. The advice Mr. Welsh gave on these few exchanges over the course of several years were on clearly unrelated matters . . . .” The statute states, in pertinent part, “An employee so aggrieved who prevails in such an action shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits and shall also be awarded the costs of the litigation and reasonable attorneys’ fees.” G. L. c. 149, § 150, as amended by St. 2008, c. 80, § 5. On April 8, 2014, the court further ordered an award of Wessell’s costs and attorney’s fees, which together totaled about $40,000. The defendants did not file an appeal from that order, and its correctness is not before us. Rule 1.9(a) states, “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.” The Massachusetts Rules of Professional Conduct “specifically incorporate” the substantial relationship test. Adoption of Erica, 426 Mass, at 61. One can envision a scenario where matters are substantially related despite a lack of confidential information. Such is not the case here. “[T]he exact parameters” of when two matters are substantially related has not been delineated in the case law. Slade v. Ormsby, 69 Mass. App. Ct. at 547 n.11, citing Adoption of Erica, 426 Mass, at 62. Regarding the employee handbook that Welsh was alleged to have helped to create for Mink Brook, the judge found the defendants’ contention to be an “overstatement.” While Welsh infrequently gave uncompensated legal advice to Wessell, the defendants and Welsh never expressly created any formal representation agreement. See Page v. Frazier, 388 Mass, at 62. Additionally, while a closer question, they never formed an implied

Daniel Conway vs. CLC Bio, LLC. No. 14-P-350. Middlesex. December 10, 2014. June 12, 2015. Present: Kantrowitz, Green, & Sullivan, JJ. Arbitration, Judicial review, Award, Authority of arbitrator. Massachusetts Wage Act. There was no error in the denial of a motion to vacate an arbitration award concerning the plaintiffs claim for unpaid wages under 'the Wage Act, G. L. c. 149, §§ 148, 150, where, given that the arbitration clause in the plaintiffs employment contract (which expressly referenced statutory claims) was sufficiently broad to encompass both contractual and statutory claims, the plaintiffs only contention that the arbitrator exceeded his power was in substance a claim that the arbitrator committed an error of law, and was not subject to judicial review [505-507]; moreover, this court declined to consider the plaintiff’s contention that the limitation on judicial review of arbitration awards under commercial agreements concerning State statutory claims is contrary to public policy, given that the Federal Arbitration Act, governing private agreements to arbitrate in contracts in interstate commerce, supersedes State law that conflicts with its terms [507-509]. Civil action commenced in the Superior Court Department on February 17, 2012. A motion to vacate an arbitration award was heard by Douglas H. Wilkins, L, and judgment was entered by him. David B. Summer for the plaintiff. Michelle Y. Bush for the defendant. Sullivan, J. The plaintiff, Daniel Conway, appeals from the denial of his motion to vacate an arbitration award, see G. L. c. 251, § 12, concerning a claim for unpaid wages under the Wage Act. See G. L. c. 149, §§ 148, 150, as amended through St. 2008. We affirm and, in so doing, reiterate the standard of review applicable to complaints to vacate a commercial arbitration award. Background. To place our discussion in context, we set forth the facts found by and rationale of the arbitrator. Conway was employed by the defendant, CLC Bio, LLC (CLC), a bioinformatics company, from October, 2007, until his termination in January, 2012. Conway’s employment at CLC was governed by an employment contract that provided for his base salary and potential bonus payments or commissions. The contract also contained an arbitration clause that mandated arbitration of “any dispute or controversy arising out of or relating in any way to [Conway’s] employment with and/or termination from [CLC].” Conway’s employment at CLC was terminated on January 12, 2012. On January 18, 2012, CLC sent Conway a letter offering to pay severance and outstanding bonus payments to Conway in exchange for a release of claims. Conway failed to respond, but CLC tendered $30,325 in bonus payments to Conway on March 1, 2012, payments which included a $10,990 individual sales bonus (ISB). In the interim, on February 17, 2012, Conway filed a complaint against CLC in the Superior Court, alleging breach of contract, breach of the covenant of good faith and fair dealing, and violations of the Wage Act stemming from claims for severance pay, unpaid vacation time, and future and late-paid commissions. CLC moved to stay the proceedings and compel arbitration pursuant to the arbitration provision in Conway’s employment contract. See G. L. c. 251, § 1, as appearing in St. 1991, c. 398, § 96. The motion judge granted CLC’s motion, and the parties proceeded to arbitration. In arbitration Conway claimed, among other things, that CLC violated the Wage Act by failing to effectuate payment of the ISB on the date of his termination. See G. L. c. 149, § 148. The arbitrator found that the ISB, despite being called a “bonus,” was in fact a commission subject to the protections of the Wage Act. She concluded, however, that the ISB did not become “definitely determined” and “due and payable,” see G. L. c. 149, § 149, until the end of February, 2012, rather than the date of Conway’s termination, because the employment contract provided that ISB commissions were to be paid to employees only when the corresponding sales were paid in full by the customers. The arbitrator found that CLC would have tendered the ISB payment well before the end of February, 2012, if Conway had not failed to respond to CLC’s January 18, 2012, offer letter before initiating formal litigation. The arbitrator concluded that the delay in payment of the ISB until March 1, 2012, was not wholly attributable to CLC and was, therefore, not a violation of the Wage Act. Conway subsequently filed a motion to vacate the arbitrator’s award in the Superior Court, disputing only the arbitrator’s determination regarding the ISB. Conway contended that the arbitrator exceeded her authority in failing to find a violation of the Wage Act, and that the arbitrator’s conclusion to the contrary was not in accordance with the law. A judge of the Superior Court confirmed the arbitration award, and dismissed Conway’s complaint with prejudice. Discussion. There is a “strong public policy” favoring arbitration of commercial disputes. Connecticut Valley Sanitary Waste Disposal, Inc. v. Zielinski, 436 Mass. 263, 267 (2002) (citation omitted). Commercial arbitration awards, such as the one at issue here, are subject to a narrow scope of judicial review. See G. L. c. 251, § 12; Superadlo Ltd. Partnership v. Winstar Radio Prods., LLC, 446 Mass. 330, 333 (2006). Absent fraud, corruption, or other undue means in the procurement of the agreement to arbitrate or a showing that the award is otherwise void or voidable, an arbitrator’s award is binding. Id. at 336-337. McInnes v. LPL Financial, LLC, 466 Mass. 256, 262-263 (2013). An arbitrator’s findings of fact and conclusions of law are binding even if erroneous. Boston Water Power Co. v. Gray, 6 Met. 131, 181 (1843). Jones v. Boston Mill Corp., 6 Pick. 148, 156 (1828). Trustees of the Boston & Me. Corp. v. Massa chusetts Bay Transp. Authy., 363 Mass. 386, 390 (1973). Dane v. Aetna Cas. & Sur. Co., 369 Mass. 966, 967 (1976) (Dane). However, an arbitrator’s award may be vacated if the arbitrator exceeded her authority. See G. L. c. 251, § 12(a)(3); Superadlo, supra at 334. Conway’s assertion that the arbitrator exceeded her authority is misdirected. An arbitrator exceeds her authority if she awards relief beyond the scope of the arbitration agreement, beyond that to which the parties bound themselves, or enters an award prohibited by law. Superadio, supra. “The fact that an arbitrator [may have] committed an error of law does not alone mean that [s]he has exceeded [her] authority.” Boston v. Professional Staff Assn., 61 Mass. App. Ct. 105, 112 (2004) (quotation omitted). Conway’s employment contract expressly provided the arbitrator with the authority to arbitrate any “dispute or controversy arising out of or relating in any way to the Employee’s employment with and/or termination from the Company.” See note 2, supra. This arbitration clause, which expressly referenced statutory claims, is sufficiently broad to encompass both contractual and statutory claims. See Joulé, Inc. v. Simmons, 459 Mass. 88 (2011); Dixon v. Perry & Slesnick, P.C., 75 Mass. App. Ct. 271, 278 (2009); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (Gilmer). , Contrast Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 390 (2009). Conway’s “only contention that the arbitrator exceeded [her] power is in substance a claim that the arbitrator committed an error of law,” and is not subject to judicial review. Dane, supra. Conway relies on cases decided under the statutory arbitration provisions of the Education Reform Act of 1993, G. L. c. 71, § 42 (Reform Act), in support of his contention that the court is nonetheless authorized to review the award for errors of law based on a violation of statute. Arbitration cases arising under § 42 of the Reform Act involving terminated teachers with professional teacher status are inapposite in this respect. Arbitration of these cases under § 42 of the Reform Act is a creature of statute. In these cases, both the scope of statutory arbitration and the arbitrator’s authority are delimited by the Reform Act. As the Supreme Judicial Court has recently explained, “judicial review of an arbitrator’s interpretation of [an] authorizing statute ... is ‘broader and less deferential’ than in cases of judicial review of an arbitrator’s decision arising from an interpretation of a private agreement.” School Comm. of Lexington v. Zagaeski, 469 Mass. 104, 112 (2014), quoting from Atwater v. Commissioner of Educ., 460 Mass. 844, 856-857 (2011). In the case of statutory arbitration under § 42 of the Reform Act, where the source and scope of an arbitrator’s authority is defined by statute, a court is “better position[ed]” to interpret the scope of the arbitrator’s authority granted by the authorizing statute and is thus empowered to vacate an arbitration award if the arbitrator has exceeded her statutory authority. School Dist. of Beverly v. Getter, 435 Mass. 223, 229-230 (2001) (Cordy, J., concurring) (Getter). By contrast, in cases where the source and scope of the arbitrator’s authority emanate from a commercial agreement to arbitrate claims, including statutory claims, the arbitrator is fully “empowered to interpret the underlying contract and the extent of [her] powers thereunder.” Geller, supra at 229 (Cordy, J., concurring). Judicial review is therefore highly limited. Review for error of law or fact is precluded, unless the arbitrator has otherwise exceeded her authority by exceeding the scope of the agreement to arbitrate, or issuing an award that violates public policy. See Superadlo, 446 Mass, at 330, 334; School Comm, of Lexington v. Zagaeski, supra at 112. Conway contends that this result is contrary to public policy to the extent that it consigns the enforcement of statutes (like the Wage Act), which are meant to benefit the public as a whole, to private, unreported, unreviewable, standardless adjudication. We are foreclosed from considering this contention, which has been rejected in a series of cases beginning with Gilmer, supra, and culminating most recently in American Exp. Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013) (Amex), enforcing private agreements to arbitrate. See Feeney v. Dell Inc., 466 Mass. 1001 (2013); McInnes v. LPL Financial, LLC, 466 Mass. 256, 261-263 (2013). A private agreement to arbitrate in a contract in interstate commerce is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006) (FAA), which supersedes State law that conflicts with its terms. McInnes, supra at 264. Preston v. Ferrer, 552 U.S. 346 (2008). “In all relevant respects, the language of the FAA and [G. L. c. 251, §§ 2 and 12,] providing for enforcement of arbitration provisions are similar, and we have interpreted the cognate provisions in the same manner.” Warfield, supra at 394. Under the FAA, absent a question of arbitrability, countervailing Congressional command, or cognizable challenge to the validity of the agreement to arbitrate, an agreement to arbitrate statutory claims must be enforced. 9 U.S.C. §§ 2, 10-11. Amex, supra. Gilmer, supra. Any attempt to refashion our State law to permit de novo review of commercial arbitration awards involving statutory claims would run afoul of the FAA, which also prohibits review of an arbitrator’s findings of fact and rulings of law, so long as the arbitrator does not otherwise exceed her authority. See 9 U.S.C. § 10(a)(4); Hall St. Assocs., LLC v. Mattel, Inc., 552 U.S. 576 (2008); Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064, 2070 (2013). See also Wilko v. Swan, 346 U.S. 427 (1953), abrogated on other grounds by Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477 (1989). The judgment confirming the arbitration award and dismissing the complaint is affirmed. So ordered. The commissions clause provided that “[CLC] shall pay [Conway] a commission as set forth in Appendix A, which is attached hereto and hereby incorporated by reference. [Conway’s] commission shall be deemed to have been earned by [him] and owing by [CLC] when the invoice applicable to the specific products and services sold has been paid in full by the customer.” The arbitration clause of Conway’s contract provided in part: “The Employee agrees that any dispute or controversy arising out of or relating in any way to the Employee’s employment with and/or termination from the Company (including, but not limited to, all claims, demands or actions under any federal, state or local statute or regulation regarding employment discrimination, and/or all claims, demands or actions concerning the interpretation, construction, performance or breach of this Agreement) shall be settled by arbitration held in Boston, Massachusetts, in accordance with the Rules of the American Arbitration Association, before an arbitrator who shall have experience in the area of the matter in dispute. Each party shall bear its own costs and attorneys’ fees in connection with any arbitration pursuant to this paragraph.” The statute provides in relevant part: “This section shall apply ... to the payment of commissions when the amount of such commission, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee, and commissions so determined and due such employees shall be subject to the provisions of section one hundred and fifty.” G. L. c. 149, § 148. Gilmer was decided under the provisions of the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006) (FAA), which governs agreements to arbitrate in interstate commerce and supersedes State law to the contrary. See infra. Agreements to arbitrate implicate a number of State and Federal statutes in addition to the FAA. Enforcement of arbitration awards arising under private sector collective bargaining agreements involving companies in interstate commerce are governed by § 301 of the National Labor Relations Act, as amended, 29 U.S.C. § 185 (1952) (NLRA). The State court has concurrent jurisdiction to enforce awards governed by § 301 of the NLRA. Morceau v. Gould-National Batteries, Inc., 344 Mass. 120, 123-124 (1962), citing Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962) (affirming Courtney v. Charles Dowd Box Co., 341 Mass. 337 [1960]). General Laws c. 150C is the State statute that also governs the enforceability of both public and private sector collectively bargained agreements to arbitrate, except as otherwise provided by the Education Reform Act of 1993, G. L. c. 71, § 42. The statute at issue here, G. L. c. 251, § 1, as appearing in St. 1991, c. 398, § 96, governs other agreements to arbitrate in the Commonwealth. The same rule applies to review of arbitration awards under public sector collective bargaining agreements (other than those governed by the statutory arbitration provisions of the Education Reform Act of 1993, G. L. c. 71, § 42, see infra) and private sector collective bargaining agreements. See Lynn v. Thompson, 435 Mass. 54, 61-62 (2001), cert, denied, 534 U.S. 1131 (2002) (interpreting G. L. c. 150C, § 11); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). See also Greene v. Mari & Sons Flooring Co., 362 Mass. 560, 563 (1972) (interpreting 29 U.S.C. § 301 and G. L. c. 150C, respectively). In other respects, the standard of review of arbitration awards under the Reform Act is the same. That is, absent a showing that the arbitrator exceeded her authority, “a reviewing court is ‘strictly bound by the arbitrator’s factual findings and conclusions of law, even if they are in error.’ ” School Comm, of Marshfield v. Marshfield Educ. Assn., 84 Mass. App. Ct. 743, 752 (2014), quoting from School Comm, of Lowell v. Robishaw, 456 Mass. 653, 660 (2010) (citations omitted). Other grounds for vacating an award under the FAA include corruption, fraud, undue means, or misconduct. 9 U.S.C. § 10(a). Similar grounds are set forth in G. L. c. 251, § 12. We need not address whether “manifest disregard” for the law remains a nonstatutory ground for vacatur under the FAA, see Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349 (5th Cir. 2009) (and cases cited), discussing Hall St. Assocs., LLC v. Mattel, Inc., 522 U.S. 576 (2008), since the claims made here do not rise to the level of “manifest disregard,’ however that term has been defined.

Edson Teles Machado & others vs. System4 LLC & another. Norfolk. December 4, 2014. April 13, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Massachusetts Wage Act. Contract, Franchise agreement, Arbitration. Arbitration, Damages, Arbitrable question. In a class action brought by franchisee janitorial workers (plaintiffs) who had signed agreements with a regional subfranchisor of the master franchisor, the master franchisor (a nonsignatory to the agreements) could compel, under principles of equitable estoppel, the plaintiffs to pursue their substantive claims in arbitration based on their agreements with the regional subfranchisor, where the plaintiffs asserted multiple claims that arose out of and related directly to terms within the agreements, which contained the arbitration clause [209-215], and where the plaintiffs consistently had alleged concerted misconduct by the defendants [215-216]; further, the plaintiffs’ claims under the Wage Act, G. L. c. 149, § 148, were arbitrable, given that the plaintiffs had not unwittingly relinquished their right to recovery under the Wage Act upon signing the agreements [216-218]; finally, there was no merit to the plaintiffs’ claim that the agreements were permeated with a series of unconscionable provisions that rendered them invalid under Massachusetts law, especially in light of the presence of a severability clause and the strong public policy in favor of arbitration [218-220]. Civil action commenced in the Superior Court Department on March 24, 2010. Following review by this court, 465 Mass. 508 and 466 Mass. 1004 (2013), a motion for a ruling that an arbitration clause did not apply to certain claims was heard by Patrick F. Brady, J. The Supreme Judicial Court granted an application for direct appellate review. Eric H. Karp for the defendants. Shannon Liss-Riordan for the plaintiffs. Jocilene da Silva, Stenio Ferreira, Poliane Santos, Glaucea de Oliveira Santos, and Luiz Santos. NECCS, Inc., doing business as System4 of Boston, LLC (NECCS). Cordy, J. This case was filed in 2010 by a franchisee janitorial worker, on behalf of himself and other similarly situated individuals, against System4 LLC (System4), a “master franchisor,” and NECCS, Inc., doing business as SystemA of Boston, LLC (NECCS), a regional “subfranchisor,” originally alleging, in relevant part, breach of contract, rescission of contract, and misclassification as independent contractors in their franchise agreements. The franchise agreements are signed only by the plaintiffs and NECCS; however, the complaint as originally filed, and as subsequently amended, does not differentiate NECCS from SystemA and alleges that the former is “the agent of’ and “exists solely to conduct [the] business” of the latter. The agreements govern a franchisee’s right to customer account referrals and the use of SystemA’s proprietary information in operating commercial janitorial cleaning businesses. They also require the franchisee plaintiffs to arbitrate virtually all disputes. While the plaintiffs raise a number of arguments on appeal, of central importance is the question whether SystemA, a nonsignatory, can compel the franchisee plaintiffs to arbitrate their substantive claims in accord with the arbitration provision in the plaintiffs’ franchise agreements. We conclude that by reason of equitable estoppel they can do so in the circumstances of this case. Background. SystemA, an Ohio limited liability company, contracts with a regional subfranchisor in the Boston area, NECCS, who subsequently enters into franchise agreements with franchisees, such as the plaintiffs. Although SystemA is not a signatory to these agreements, the agreements provide the franchisees with access to SystemA’s marketing expertise, business practices, training, and use of trademarks, by way of a separate agreement between SystemA and NECCS. 1. Arbitration clause. The franchisee plaintiffs are parties to agreements to operate SystemA franchises (franchise agreements). Under these agreements, NECCS offers its franchisees customer accounts to service, which the franchisees are free either to accept or refuse. The agreements purport to guarantee gross monthly billings to the franchisees based on the value of the customer accounts offered to them. In addition, the agreements authorize the franchisees to use System4’s proprietary information, including its brand and trademarks. The agreements characterize the franchisees as independent contractors, a characterization they contest, and each agreement contains an arbitration clause. The arbitration clause is broad in scope, requiring arbitration of any claims between the franchisee and NECCS and its subsidiaries, affiliates, shareholders, officers, directors, managers, representatives, and employees, arising out of or related to: (1) the franchise agreement or any other agreement between the parties, including claims related to the validity of the franchise agreement or any other agreement; (2) NECCS’s relationship with the franchisee; or (3) claims relating to the operation of the franchised business. Accordingly, virtually all claims arising out of the franchise relationship are subject to arbitration. 2. Plaintiffs as franchisees. Machado, the original named plaintiff in this action, signed a franchise agreement with NECCS on February 14, 2008, initialing each page. After signing his franchise agreement, Machado both rejected and accepted offers extended to him by NECCS to service customer accounts. In October, 2008, Machado informed NECCS that he wished to sell his franchise, and he stopped performing services for his accounts. In November, 2008, Machado spoke with the president of NECCS, Jonathan Caffrey, and asked for his franchisee fees back. When Caffrey declined to return the fees, Machado ceased communication with NECCS. 3. Procedural history. Machado filed a complaint in the Superior Court in March, 2010, on behalf of himself and “other similarly situated individuals.” In so doing, Machado named both System4 and NECCS as defendants, and claimed that both had committed a breach of the franchise agreement by not providing him with sufficient customer accounts. In addition, Machado claimed that both defendants misclassified him as an independent contractor in the agreement and committed other violations of the Massachusetts Wage Act, G. L. c. 149 §§ 148, 148B, and 150 (Wage Act). In June, 2010, the defendants, citing the arbitration clause in Machado’s franchise agreement, filed a motion to stay the court proceedings pending arbitration. A judge denied the motion, holding that the arbitration agreement was unenforceable because it contained waivers of class proceedings and multiple damages. Subsequently, in April, 2011, the United States Supreme Court held in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (Concepcion), that the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2012) (FAA), prohibits States from conditioning the enforceability of arbitration agreements on the availability of class action procedures. Thereafter, Machado amended his complaint, adding additional named plaintiffs as well as a putative class of individuals who had performed cleaning services for NECCS and System4. The amended complaint again asserted claims against both defendants without differentiation, seeking rescission of the franchise agreements and damages for misclassification among other violations of the Wage Act. In December, 2011, the defendants moved for reconsideration of the denial of their motion to compel arbitration in light of Concepcion. The judge denied the defendants’ motion, and the defendants petitioned for interlocutory review. A single justice of the Appeals Court referred the issue to a full panel of the Appeals Court, and we granted the plaintiffs’ application for direct appellate review. The appellate filings of both the plaintiffs and the defendants in that interlocutory appeal addressed the enforceability of the arbitration clause as a whole and made no argument as to whether the arbitration clause, if enforceable, would require arbitration of the plaintiffs’ claims only against NECCS and not System4. We issued a decision in June, 2013, but stayed issuance of the rescript until August, 1, 2013, pending submissions by the parties on the effect, if any, of the United States Supreme Court’s decision in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013). See Machado v. System4 LLC, 465 Mass. 508 (2013) (Machado I). In light of the decisions of the United States Supreme Court, we concluded that a class action waiver provision was not an adequate ground on which to invalidate an agreement to arbitrate. See Machado v. System4 LLC, 466 Mass. 1004, 1004 (2013) (Machado II). See also Machado I, supra at 513-517. We then remanded the case to the Superior Court judge for proceedings consistent with our decision. See Machado II, supra. Subsequently, the plaintiffs filed a motion, as well as a post-hearing letter, again asking the judge to deny the defendants’ motion to compel arbitration on several grounds: first, that the arbitration clause could not apply to their Wage Act claims because it did not specifically reference the Wage Act, an argument that was based on our decision in Crocker v. Townsend Oil Co., 464 Mass. 1, 14 (2012) (holding that release of claims must specifically reference Wage Act in order to apply to Wage Act claims); second, that the arbitration clause was unenforceable, as it contained multiple unconscionable provisions; and third, that the plaintiffs were not bound to arbitrate their claims against System4 because it was not a signatory to the franchise agreements. The judge rejected the plaintiffs’ Wage Act claim and also held that issues of unconscionability of the arbitration clause could be decided by an arbitrator. However, the judge agreed with the plaintiffs that, because System4 was not a signatory to the franchise agreements, the plaintiffs could proceed to litigate their claims against System4 in court. System4 appealed the judge’s decision regarding the enforceability of the arbitration clause as applied to it. The plaintiffs did not file a cross appeal regarding the judge’s decision denying them relief on their other grounds, but filed an application for direct appellate review, which we granted. The plaintiffs ask us to affirm the judge’s reasoning in declining to enforce the arbitration clause with respect to System4 or, in the alternative, to affirm the ruling on one of the grounds rejected by the judge. Discussion. Denials of applications to compel arbitration are reviewed de novo. See Joulé, Inc. v. Simmons, 459 Mass. 88, 92-93 (2011); Feeney v. Dell Inc., 454 Mass. 192, 199 (2009), S.C., 465 Mass. 470, and 466 Mass. 1001 (2013). See also War- field v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 390, 395 (2009) (motion to compel arbitration treated summarily and judge’s order reviewed de novo). The Massachusetts Arbitration Act, G. L. c. 251, similarly to the FAA, “expresses a strong public policy favoring arbitration as an expeditious alternative to litigation for settling commercial disputes.” Miller v. Cotter, 448 Mass. 671, 676 (2007), quoting Home Gas Corp. of Mass., Inc. v. Walter’s of Hadley, Inc., 403 Mass. 772, 774 (1989). “[T]he lack of a written arbitration agreement is not an impediment to arbitration.” Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir. 1993), cert. denied sub nom. Sunkist Growers, Inc. v. Del Monte Corp., 513 U.S. 869 (1994). 1. Nonsignatory compulsion of signatory to arbitrate. We begin our discussion with a consideration of whether SystemA, a non-signatory to the franchise agreements, can compel the plaintiffs to pursue their substantive claims in arbitration based on the agreements they entered into with NECCS. In Depianti v. Jan-Pro Franchising Int’l, Inc., 465 Mass. 607, 622, 624-625 (2013), we recently held that a franchisee, much like the plaintiffs in this case, could hold a nonsignatory to his franchise agreement liable for misclassifying him as an independent contractor in that agreement if the nonsignatory had attempted to insulate itself from liability by “causing or creating another entity to [enter the agreement].” This is essentially what the plaintiffs allege here, that is, that NECCS was created solely to conduct SystemA’s franchising business in Massachusetts; that the franchise agreements are SystemA’s standard form contracts; and that SystemA controls the relationships between the parties and between the plaintiffs and their clients. Therefore, they argue, SystemA is just as liable for the misclassification in their franchise agreements as NECCS, even though SystemA did not sign them. Although denying liability and an agency relationship with NECCS, SystemA essentially argues that where the plaintiffs contend that SystemA was effectively the franchisor, the creator of the agreements and their terms, the violator of those terms, and the beneficiary of the purported misclassification term, any dispute arising out of the agreements should be resolved in accord with the arbitration clause that provides for such dispute resolution. While a nonsignatory attempting to bind a signatory to an arbitration agreement is distinct from a signatory attempting to bind a nonsignatory, courts often consider both scenarios under a similar legal framework. Traditionally, courts have recognized six theories for binding nonsignatories to arbitration agreements: (1) incorporation by reference; (2) assumption; (3) agency; (4) veil-piercing/alter ego; (5) equitable estoppel, and (6) third-party beneficiary. See J.E. Grenig, Alternative Dispute Resolution § 7:4 (3d ed. 2005). See also Walker v. Collyer, 85 Mass. App. Ct. 311, 319 (2014); Bridas S.A.P.I.C. v. Government of Turkmenistan, 345 F.3d 347, 356 (5th Cir. 2003), cert. denied, 541 U.S. 937 (2004). Notably, while Federal courts have been “hesitant to estop a nonsignatory seeking to avoid arbitration,” they generally “have been willing to estop a signatory from avoiding arbitration with a nonsignatory.” InterGen N. V. v. Grina, 344 F.3d 134, 145-146 (1st Cir. 2003), quoting Thomson-CSF, S.A. v. American Arbitration Ass’n, 64 F.3d 773, 779 (2d Cir. 1995). The theory with clearest application to the facts of this case is equitable estoppel, a doctrine governed by State contract law. See Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 632 (2009). There are no reported Massachusetts appellate decisions determining whether this doctrine may be applied to extend the reach of an agreement to compel a signatory into arbitration with a nonsignatory. Nevertheless, we are guided in our analysis by decisions of several circuit courts of the United States Court of Appeals that have applied equitable estoppel in this precise context. And while “[t]he [Federal circuit courts] have not uniformly articulated the standards for application of estoppel, . . . their formulations have contained common elements.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 449 Fed. Appx. 704, 708 (10th Cir. 2011). Equitable estoppel typically allows a nonsignatory to compel arbitration in either of two circumstances: (1) when a signatory “must rely on the terms of the written agreement in asserting its claims against the nonsignatory” or (2) when a signatory “raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.” Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 527 (5th Cir.), cert. denied, 531 U.S. 1013 (2000), quoting MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999). In such situations, a reviewing court may consider all of “the relationships of persons, wrongs and issues” in the case. Merrill Lynch Inv. Managers v. Optibase, Ltd., 337 F.3d 125, 131 (2d Cir. 2003), citing Chocotaw Generation Ltd. Partnership v. American Home Assur. Co., 271 F.3d 403, 406 (2d Cir. 2001). a. Reliance on terms of written agreement. When the signatory’s claims against a nonsignatory refer to or presume the existence of the written agreement that compels arbitration, the signatory’s claims may be considered to arise out of and be directly intertwined with that agreement, rendering arbitration appropriate. See CD Partners, LLC v. Grizzle, 424 F.3d 795, 798 (8th Cir. 2005). Essentially, if a party’s claims are so intimately founded in and closely related to an agreement which also mandates arbitration, the party opposing arbitration is equitably estopped from denying the arbitrability of its claims, even against a nonsignatory. “The plaintiff’s actual dependence on the underlying contract in making out the claim against the nonsignatory defendant is therefore always the sine qua non of an appropriate situation for applying equitable estoppel.” Lenox MacLaren Surgical Corp., 449 Fed. Appx. at 710 (citation omitted). Courts frequently rule in favor of nonsignatories in such circumstances because “it would be unfair to allow the signatory to rely on the agreement in formulating its claims but to disavow availability of the arbitration clause of that same agreement.” PRM Energy Sys., Inc. v. Primenergy, L.L.C., 592 F.3d 830, 835, 836 (8th Cir. 2010) (permitting arbitration under equitable estoppel theory in part because allegations were intimately founded in and intertwined with agreement containing arbitration clause). See CD Partners, LLC, 424 F.3d at 800-801 (arbitration compelled where franchisee’s claims arose directly out of and related to its operation of franchises under agreement containing arbitration clause). For example, in JLM Indus., Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 177-178 (2d Cir. 2004), the court held that nonsignatory ship owners could compel arbitration when charterers alleged that the owners conspired to inflate price terms in contracts between the charterers’ and the owners’ subsidiaries, as these claims were “undeniably intertwined” with the contracts containing an arbitration clause. Additionally, in Grigson, 210 F.3d at 529-531, a different court held that allegations that nonsignatories tortiously interfered with a film distribution agreement containing an arbitration clause were sufficiently intertwined with the agreement to compel arbitration where the very essence of the claims required a determination whether the nonsignatories had fulfilled their obligations under the agreement. Similarly, here, the plaintiffs assert multiple claims that arise out of and relate directly to terms within the franchise agreements containing the arbitration clause. Contrast In re Wholesale Gro eery Prods. Antitrust Litig., 707 F.3d 917, 921-924 (8th Cir. 2013) (no equitable estoppel where signatory alleged no violation of contract terms and signatory’s claims existed independently of agreement containing arbitration clause). Specifically, the plaintiffs allege both that the defendants misclassified the plaintiffs as independent contractors in the agreements and used unfair and deceptive business practices that misrepresented the terms of their contractual relationship. Indeed, it is the franchise agreements themselves that the plaintiffs allege created the service relationship between them and the defendants, mischaracterized the relationship as one of independent contractor rather than employee, and “contain[ed] numerous provisions that are unfair, unconscionable, [and] against public policy.” These claims are inextricably intertwined with and relate directly to the franchise agreements containing the arbitration provision. In particular, the plaintiffs’ request for contract rescission and allegations of unenforceability necessarily depend on an analysis of the terms, provisions, and warranties delineated within their agreements. See Liles v. Ginn-La West End, Ltd., 631 F.3d 1242, 1255-1257 (11th Cir. 2011)

David Fernandes vs. Attleboro Housing Authority. Bristol. September 4, 2014. November 19, 2014. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Labor, Wages. Superior Court, Jurisdiction. Jurisdiction, Primary jurisdiction, Superior Court, Civil Service Commission. Public Employment, Termination, Reinstatement of personnel. Civil Service, Applicability of provisions, Termination of employment, Reinstatement of personnel. Employment, Termination, Retaliation. Damages, Additur. Practice, Civil, Additur, Attorney’s fees. Housing Authority. Municipal Corporations, Housing authority. A Superior Court judge had subject matter jurisdiction over claims in a civil action brought by a plaintiff who was employed by a municipal housing authority as a mechanic, i.e., that the employer had violated the Wage Act, G. L. c. 149, §§ 148 and 148A, by intentionally misclassifying the plaintiff and thereby failing to pay him the wages to which he was entitled, and by terminating the plaintiff in retaliation for complaining about the nonpayment of earned wages and filing a complaint with the Attorney General’s office, where nothing in the civil service law, G. L. c. 31, §§ 41-45, suggested that the plaintiff was required to bring his action before the Civil Service Commission (commission), especially given that G. L. c. 31, § 42, suggests that the Legislature has not granted to the commission exclusive authority over all challenged employment actions and given also that the nature of the plaintiff’s claims was such that resolution of them did not require the special expertise of the commission and their resolution by the Superior Court did not interfere with the development and administration of policies under the civil service law. [120-127] In a civil action alleging a violation of the Wage Act, G. L. c. 149, §§ 148 and 148A, the judge properly declined to order the plaintiff’s reinstatement to a higher position with full seniority, where reinstatement was not an available remedy for violations of the Wage Act [127-130]; likewise, the judge did not abuse his discretion in declining to order a new trial on the question of damages or to order additur, where the damages that the jury awarded were not unreasonable [130-132]. This court concluded that, under G. L. c. 149, § 150, a litigant who prevailed in an action alleging violations of the Wage Act was entitled to recover reasonable appellate attorney’s fees and costs. [132] Civil action commenced in the Superior Court Department on November 13, 2009. The case was heard by Robert J. Kane, J., and motions for judgment notwithstanding the verdict, for reinstatement, and for a new trial or for additur were heard by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Maria M. Scott for the plaintiff. David D. Dowd for the defendant. Spina, J. David Fernandes was employed by the Attleboro Housing Authority (AHA) as a maintenance mechanic II from January 16, 2001, until his termination on May 29, 2009. Approximately six months later, he commenced an action in the Superior Court against the AHA for alleged violations of the Wage Act, G. L. c. 149, §§ 148 and 148A. Fernandes claimed that the AHA violated § 148 by intentionally misclassifying his position as maintenance mechanic II, instead of maintenance mechanic I, and thereby failing to pay him the wages to which he was entitled. Fernandes also alleged that the AHA violated § 148A by terminating him in retaliation for complaining about nonpayment of earned wages and filing a complaint with the Attorney General’s office. Following a trial in January, 2012, a jury, in response to special questions, found in favor of Fernandes on both claims. The jury awarded damages against the AHA in the amount of $2,300 for unpaid wages due to misclassification, and $130,000 for lost wages due to retaliation. The parties then filed numerous posttrial motions. Of relevance to the present appeal, the AHA filed a motion for judgment notwithstanding the verdict, contending that the Superior Court lacked subject matter jurisdiction over Fernandes’s wage and retaliation claims because, as a housing authority employee, Fernandes was required to bring such claims before the Civil Service Commission (commission) for resolution. Fernandes filed a motion for reinstatement to the position of maintenance mechanic I with full seniority as if he had not been terminated from employment on May 29, 2009, and a motion for a new trial on damages or, in the alternative, for additur. Following hearings, the trial judge denied all three motions in a thorough and well-reasoned decision. First, after considering the purposes of and remedies afforded by the Massachusetts civil service law, G. L. c. 31, §§ 41-45, and the Wage Act, G. L. c. 149, §§ 148, 148A, 150, the judge discerned no legislative intent to confine a housing authority employee to the procedures set forth in the civil service law where his termination implicated violations of his rights under the Wage Act. Accordingly, the judge concluded that the AHA was not entitled to judgment notwithstanding the verdict. Next, with respect to Fernandes’s motion for reinstatement, the judge was unpersuaded that G. L. c. 149, § 150, authorized such a remedy for retaliatory conduct in the absence of clear statutory language to that effect. Finally, the judge concluded that although the jury’s calculation of $130,000 in damages for lost wages due to retaliation was less than the amount to which Fernandes thought he was entitled, the award was neither unreasonable nor so unduly small as to suggest the need for additional relief. In accordance with G. L. c. 149, § 150, the judge proceeded to award Fernandes treble damages in the amount of $6,900 for unpaid wages and $390,000 for retaliatory termination, plus reasonable attorney’s fees in the amount of $36,667.50 and costs of $1,087.36. The parties’ cross appeals were entered in the Appeals Court, and we transferred the case to this court on our own motion. For the reasons that follow, we conclude that the Superior Court had subject matter jurisdiction over Fernandes’s claims under the Wage Act, that reinstatement to employment is not an available remedy for violations of such statutory scheme, and that the judge did not abuse his discretion in denying Fernandes’s motion for additur. Accordingly, the judgment of the Superior Court is affirmed. 1. Background. We briefly recite the facts the jury could have found from the evidence at trial, reserving some details for later discussion. When Fernandes was hired by the AHA in 2001, he was classified as a maintenance mechanic II. It was an entry-level position, considered to be in the nature of an apprenticeship to a higher job classification. In 2003, the executive director of the AHA, John Zambarano, implemented changes to the duties of its maintenance department workers. Pursuant to these changes, Fernandes was required to perform more diversified work that he believed was consistent with the position of maintenance mechanic I, which required a greater skill level and paid a higher salary than he was receiving. Notwithstanding Fernandes’s enhanced job responsibilities, the AHA continued to pay him the salary of a maintenance mechanic II. On various occasions over the years of his tenure, Fernandes complained to his supervisor, Mark Johnson, and to Zambarano that he was misclassified and that, based on his duties, he properly should be classified as a maintenance mechanic I with the commensurate wage rate. His complaints were unsuccessful. Finally, on April 28, 2009, Fernandes filed a “Non-Payment of Wage and Workplace Complaint Form” with the Attorney General’s office. He alleged that, based on his job responsibilities, he had been misclassified as a maintenance mechanic II and was owed wages commensurate with the position of maintenance mechanic I. Fernandes informed Johnson that he had filed this complaint, and he subsequently requested and received from Dianne Precourt, AHA’s financial coordinator, copies of his job description and the prevailing wage rates. One month later, on May 29, 2009, Zambarano called Fernandes into a meeting and informed him that, based on the seniority of the personnel on the maintenance staff, Fernandes was being laid off due to budgetary constraints. He was given two weeks of severance pay. The present action ensued. 2. Jurisdiction over Fernandes’s claims. The AHA contends in this appeal that a housing authority employee can seek redress for an adverse employment action only through administrative proceedings under the civil service law, G. L. c. 31, §§ 41-45, and not through judicial proceedings in the Superior Court. In the AHA’s view, Fernandes’s complaint essentially alleged that he had been subjected to a decrease in compensation and then terminated without “just cause,” G. L. c. 31, §41, which are matters within the exclusive purview of the commission. Consequently, the AHA continues, the Superior Court lacked subject matter jurisdiction over Fernandes’s original action and, therefore, the judge should have granted AHA’s motion for judgment notwithstanding the verdict under the doctrine of primary jurisdiction. We disagree. The doctrine of primary jurisdiction arises in cases where a plaintiff, “in the absence of pending administrative proceedings, invokes the original jurisdiction of a court to decide the merits of a controversy” that includes an issue within the special competence of an agency. Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 220 (1979). See Everett v. 357 Corp., 453 Mass. 585, 609 (2009); Leahy v. Local 1526, Am. Fed’n of State, County & Mun. Employees, 399 Mass. 341, 345-346 & n.3 (1987). See generally A.J. Celia, Administrative Law and Practice § 1725 (1986 & Supp. 2014). “Where an agency has statutorily been granted exclusive authority over a particular issue, the doctrine of primary jurisdiction requires that a court refer the issue to the agency for adjudication in the first instance” (emphasis in original). Blauvelt v. AFSCME Council 93, Local 1703, 74 Mass. App. Ct. 794, 801 (2009), citing Everett v. 357 Corp., supra at 609-610. See Puorro v. Commonwealth, 59 Mass. App. Ct. 61, 64 (2003). The underlying rationale is that a court must be careful not to invade the province of an administrative agency before it has begun to exercise its authority in a particular case because judicial interference effectively would transfer to the courts a matter entrusted to the agency by the Legislature and would result in a substitution of the court’s judgment for that of the agency. See Wilczewski v. Commissioner of the Dep’t of Envtl. Quality Eng’g, 404 Mass. 787,792 (1989). The doctrine of primary jurisdiction has particular applicability when “an action raises a question of the validity of an agency practice ... or when the issue in litigation involves ‘technical questions of fact uniquely within the expertise and experience of an agency’ ” (citations omitted). Murphy v. Administrator of the Div. of Personnel Admin., supra at 221, quoting Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 304 (1976). See Columbia Chiropractic Group, Inc. v. Trust Ins. Co., 430 Mass. 60, 62 (1999). This court has noted that “[a] determination that primary jurisdiction over an issue in a civil case resides with an administrative agency requires that the case be stayed or dismissed to permit the administrative agency the opportunity to issue its determination.” Everett v. 357 Corp., 453 Mass. at 610 n.32. When an entire controversy is within the exclusive jurisdiction of an administralive agency, the doctrine of primary jurisdiction “ordinarily results in dismissal of judicial proceedings begun without prior resort to the agency.” J. & J. Enters., Inc. v. Martignetti, 369 Mass. 535, 540 (1976). However, “[wjhere at least one of the issues or claims is a matter for judicial determination or resolution, the court is not ousted of subject matter jurisdiction by the presence in the case of one or more issues which arguably are within the jurisdiction of an administrative or regulatory agency.” Austin Lakes Joint Venture v. Avon Utils., Inc., 648 N.E.2d 641, 646 & n.5 (Ind. 1995). See Everett v. 357 Corp., supra at 611 n.34. We proceed to consider the exclusivity of the commission’s jurisdiction with respect to Fernandes’s claims. The AHA argues that because G. L. c. 121B, § 29, explicitly provides civil service protections to tenured housing authority employees, the Legislature intended to confer jurisdiction solely on the commission to resolve complaints about purported adverse employment actions. We conclude that nothing in the civil service law suggests that Fernandes was required to bring his action before the commission where his claims alleged violations of the Wage Act, G. L. c. 149, §§ 148 and 148A. General Laws c. 121B, § 29, provides that “[n]o employee of any housing authority, except an employee occupying the position of executive director, who has held his office or position . . . within the authority for a total period of five years of uninterrupted service, shall be involuntarily separated therefrom except subject to and in accordance with the provisions of [G. L. c. 31, §§41-45,] to the same extent as if said office or position were classified under said chapter.” In turn, G. L. c. 31, § 41, states that a tenured employee shall not be discharged or laid off except for “just cause” and except in accordance with specific procedural requirements set forth in the first paragraph of § 41. Pursuant to G. L. c. 31, § 42, “[a]ny person who alleges that an appointing authority has failed to follow the requirements of [§ 41] in taking action which has affected his employment or compensation may file a complaint with the commission” (emphasis added). In accordance with G. L. c. 31, § 43, “[i]f a person aggrieved by a decision of an appointing authority made pursuant to [§ 41] shall . . . appeal in writing to the commission, he shall be given a hearing.” Thereafter, “[a]ny party aggrieved by a final order or decision of the commission . . . may institute proceedings for judicial review in the superior court.” G. L. c. 31, § 44. Finally, a tenured employee who has incurred attorney’s fees in the defense of an unwarranted adverse employment action “shall be reimbursed for such expense,” subject to specified limitations. G. L. c. 31, § 45. In essence, G. L. c. 121B, § 29, affords housing authority employees, like Fernandes, the protections of the civil service system. “The fundamental purpose of the civil service system is to guard against political considerations, favoritism, and bias in governmental hiring and promotion.” Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 259 (2001). It also is designed to “protect efficient public employees” from partisanship and arbitrary punishment. Murray v. Second Dist. Court of E. Middlesex, 389 Mass. 508, 514 (1983), quoting Debnam v. Belmont, 388 Mass. 632, 635 (1983). See Dedham v. Labor Relations Comm’n, 365 Mass. 392, 396-397 (1974). The civil service system accomplishes its purpose by mandating that an adverse employment action be taken only for “just cause,” and by imposing on an appointing authority the obligation to comply with procedural requirements that are intended to protect the rights of a tenured employee. “If the commission finds that the appointing authority has failed to follow [the] requirements [of G. L. c. 31, § 41,] and that the rights of [any] person [filing a complaint] have been prejudiced thereby, the commission shall order the appointing authority to restore said person to his employment immediately without loss of compensation or other rights.” G. L. c. 31, § 42. The aforementioned language of G. L. c. 121B, § 29, and the provisions of G. L. c. 31, §§ 41-45, clearly are meant to protect tenured employees’ rights, but nothing therein dictates that the only avenue by which a housing authority employee who claims that he has been paid inadequate wages and involuntarily separated from his employment can seek redress is through administrative proceedings before the commission. To the contrary, the language in G. L. c. 31, § 42, stating that an aggrieved employee “may” file a complaint with the commission strongly suggests that the Legislature has not granted exclusive authority over all challenged employment actions to the commission. See Salem v. Massachusetts Comm’n Against Discrimination, 404 Mass. 170, 172-174 (1989) (Massachusetts Commission Against Discrimination and Civil Service Commission simultaneously resolved separate complaints filed by individual alleging failure to hire based on race); Dedham v. Labor Relations Comm’n, 365 Mass. at 400-404 (Civil Service Commission did not have exclusive jurisdiction over suspension of employee where claim of prohibited labor practice also could be brought before Labor Relations Commission). In circumstances where, as here, an employee’s claims focus not on an employer’s failure to satisfy the requirements of G. L. c. 31, § 41, but, rather, on the employer’s violation of an entirely different and separate statutory mandate, the employee is not required to proceed before the commission, but may commence a civil action. Of critical significance in this case is the nature of Fernandes’s claims. The AHA characterizes those claims within the framework of the civil service law, contending that determinations whether Fernandes was subjected to a retaliatory layoff or a “lowering] in rank or compensation,” G. L. c. 31, § 41, involve a “just cause” analysis. However, contrary to the AHA’s view of Fernandes’s complaint, the substance of his interrelated claims pertained to alleged violations of the Wage Act. More specifically, Fernandes asserted that the AHA intentionally misclassified his position and thereby failed to pay him the wages to which he was entitled, see G. L. c. 149, § 148, and that the AHA then terminated his employment in retaliation for his filing of a nonpayment of wage complaint with the Attorney General’s office, see G. L. c. 149, § 148A. Because the central thrust of Fernandes’s action was the AHA’s purported violations of the Wage Act, and not its alleged failure to act with “just cause,” Fernandes elected to seek redress for the harm he sustained by filing an action in the Superior Court, rather than by commencing administrative proceedings before the commission. Nothing in the civil service law precluded him from doing so. See generally Boston Police Patrolmen’s Ass’n v. Boston, 435 Mass. 718, 719-720 (2002) (we interpret statutory language according to intent of Legislature ascertained from its words considered in context of statute’s purpose). Similarly, nothing in the Wage Act excludes a housing authority employee from its protections or requires that such employee pursue relief from alleged wrongful conduct under the civil service system. “The purpose of the Wage Act is ‘to prevent the unreasonable detention of wages.’ ” Melia v. Zenhire, Inc., 462 Mass. 164, 170 (2012), quoting Boston Police Patrolmen’s Ass’n v. Boston, 435 Mass. at 720. See Lipsitt v. Plaud, 466 Mass. 240, 245 (2013). It was designed, among other purposes, “to protect wage earners from the long-term detention of wages by unscrupulous employers.” Melia v. Zenhire, Inc., supra, quoting Cumpata v. Blue Cross Blue Shield of Mass., Inc., 113 F. Supp. 2d 164, 167 (D. Mass. 2000). To ensure that employees are not penalized for asserting their rights to earned wages, the Legislature included an antiretaliation clause in the Wage Act, G. L. c. 149, § 148A, to protect employees, like Fernandes, who complain about violations of the statute. See Smith v. Winter Place LLC, 447 Mass. 363, 367-368 (2006); Fraelick v. PerkettPR, Inc., 83 Mass. App. Ct. 698, 704 (2013). When the Wage Act was first enacted in